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How Can The Trump-Cohen Tape Be Public?

Posted on: July 31st, 2018

By: Greg Fayard

A lawyer and client talk. The lawyer records the conversation. The recording is made public. How can this be?

That’s what happened to then candidate Donald Trump and his New York lawyer Michael Cohen. The conversation occurred in September 2016. Trump was not aware Cohen recorded the discussion. The recording is a few minutes long and encompasses several topics, including reference to a possible payment to a Playboy model with whom Trump allegedly had an affair in 2006, although this is never expressly discussed. At one point a cash or check payment is referenced. The two speak in a verbal shorthand.

The FBI, as part of an investigation by the U.S. Attorney’s Office for the Southern District of New York, confiscated the recording in April 2018 (see earlier blog discussing this here) while investigating attorney Cohen. The recording was made public in July 2018, but it is unclear by whom.

The conversation between Cohen and Trump is ordinarily protected by the attorney-client privilege, although it is clear other people were around Trump and Cohen, calling into question whether Trump waived the privilege by speaking openly to his lawyer in front of others. Nevertheless, a special master, working under United States District Judge Kimba Wood in New York determined the tape to be privileged. Trump, as Cohen’s client, “owns” the privilege.

However, the President’s legal team “waived” the attorney-client privilege, permitting the tape’s disclosure. The question is why? Four possible reasons come to mind:

  1. The tape had already been leaked, leaving the President no other viable option but to waive the privilege;
  2. Waiving the privilege permits the President’s advisors to discuss the tape openly;
  3. Discussing the tape without officially waiving the privilege might open the door to a broader waiver of communications between Cohen and Trump; and/or
  4. If Trump’s team asserted the privilege over the tape, the government could try to overcome the privilege by asserting the “crime/fraud exception.” Simply put, a client’s communication to an attorney cannot be privileged if the communication was made with the intention of committing or covering up a crime or fraud.

At worst, if a payment to the model was actually made (not yet confirmed), such a payment might have to be reported under federal campaign finance law. The failure to do so could be a campaign finance violation. Trump allies, however, would argue any such payment was not campaign-related, but a common occurrence for a celebrity dealing with the tabloids. In any event, failing to report a campaign-related payment is not a ordinarily a crime.

Lastly, why would an attorney record his privileged conversations with a client? Only attorney Cohen can answer that (and he has not). It could be innocuous—instead of taking notes, he recorded conversations. But not advising Trump of the recording is problematic. Nevertheless, under New York law, one party recording another party without his consent is legal. (N.Y. Penal Law §§ 250.00, 250.05.)  If Cohen, however, leaked the tape when it was still considered privileged, and before Trump waived the privilege, he could face discipline from the State Bar of New York for breaching an attorney’s duty of confidentiality. (New York Rule of Professional Conduct 1.6.)  Regardless, the President was certainly not pleased with Cohen’s secret recording:

If you have any questions or would like more information, please contact Greg Fayard at [email protected].

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